I have a question for the legally-minded readers of Wizbang I want to toss out. While the penalty phase of Zacarias Moussaoui's trial goes on, I keep hearing more and more reports that the legal theory he's being tried on is that he could have prevented the 9/11 attacks. Since he was in custody at the time, he could have alerted authorities about the attacks, but didn't. It is his silence and spoken lies, they say, that led to the deaths of over 3,000 innocent people.

Now, I'm not a lawyer (just a layman with what I believe is a slighter than above average understanding of the legal system), but it's my understanding that no one has a DUTY to report a crime, or a conspiracy to commit a crime. In fact, in Moussaoui's case, a very strong 5th Amendment claim could be made -- to report the yet-to-happen attacks would most likely be a form of self-incrimination. It would have been nice if he had, but there is no compelling legal reason that would require him to do so.

Now, as I understand the way the law works, I'd have put the swine on trial for about 3,000 counts of felony homicide. Under that doctrine, if one takes part in a crime where someone is killed, all conspirators are considered as guilty as the one who actually does the killing. For example, the driver in a bank robbery where a teller is shot and killed is just as guilty as the one who pulled the trigger -- even though he never entered the bank, there was no intention to kill anyone, and might not even have known the other robber had a loaded gun.

I still stand by my long-held position -- Moussaoui has no business enjoying a normal criminal trial. He is a confessed terrorist and a combatant, albeit one inept enough to be caught before we formally recognized the threat he and his cronies posed. I would be delighted if he was either given a military tribunal or, under the terms of the Geneva Convention, summarily executed as an illegal combatant. (As one not wearing a uniform, he could be considered a spy.) But if we're going to go through the absurdity of pretending he's just an ordinary criminal, a Timothy McVeigh x 17 or so, we should at least do it in a way that's consistent with our legal system. And "you should have told us what your buddies were planning" just doesn't seem in line with the law to me.

However, it IS a crime to BE A PART of the conspiracy, and as part of the conspiracy, to protect it by remaining silent

Moussaoui was not merely in possession of the knowledge that there was a conspiracy, he was an actual active participant in it (training, for example, to become a pilot.).

His silence FURTHERED the conspiracy and was, the theory goes, evidence of his desire to see the crime occur.

And it is against the law to conspire, among other things, to use weapons of mass destruction (whether an airplane is a weapon of mass destruction will be up to the jury.)

Moussaoui would have been in LESS legal jeopardy by revealing the conspiracy.

And, not for nothing, but the 5th Amendment to the Constitution says the following: ... (nor) shall (he) be compelled in any criminal case to be a witness against himself."

In other words, the 5th Amendment ONLY protects Moussaoui from having to actually TESTIFY, in court, against himself (something, it should be noted, he has WILLINGLY done time and again. This, ipso facto, should, in my view, make any 5th Amendment argument moot.)

Giving evidence to the cops is not the same thing as having to TESTIFY to it in court, and so I believe any right-thinking judge would toss any 5th Amendment claim.

right is incorrect to this extent: the 5th protects the subject of a criminal investigation from having to talk to law enforcement/prosecutors -- thus why perps "lawyer up" when they're being questioned "in custody."

You are, of course, correct ... and why we have Miranda warnings (you have the right to remain silent).

However, choosing to do so in furtherance of a conspiracy has consequences if you are convicted.

As remy logan pointed out, the proceedings against Moussaoui now are about his punishment, as he has already pleaded guilty to his crimes. The Fifth Amendment protects accused individuals, not guilty ones.

And, since he is freely testifying (neh, yelling at Jurors, the Judge and anyone else within earshot that he'd like to kill MORE Americans), any attempt later to pursue 5th Amendment claims will likely be fruitless.

The theory that I have heard on this topic is that one of the elements of the crime of conspiracy is your intent to conspire, and a defense to the intent element is proof by the defendant that he "backed out" of the conspiracy. One way to demonstrate that he backed out would be by reporting the conspiracy to authorities. His failure to report the conspiracy, then, is an element in proving the prima facie case.

I keep hearing more and more reports that the legal theory he's being tried on is that he could have prevented the 9/11 attacks.

I've heard all kinds of way-out "legal theories" proposed about publicized legal cases. Many of the most way-out were originated by the brilliant legal minds within an erstwhile presidential administration.

The correct response to a "legal theory" you hear about in the media that doesn't make sense, is a grain of salt.

right -- once he takes the stand to say whatever he wants to say, he hs waived his 5th amendment right not to speak. He is compelled to answer any questions put to him or be held in contempt. Of course, he could not be held in as much contempt as he has already shown to the COurt and the rest of us.

"... no one has a DUTY to report a crime, or a conspiracy to commit a crime."

Yes, at least some crimes require a non-LawEnforcementOFficer to report. Ask a doctor about gunshot wounds or sex crimes. Or now, in New York City, about diabetics (yep, NYC requires reporting them and their medications). There are doubtless others imposing a legal duty in addition to the ethical and/or moral duties.

Conspiracy apparently has a special little glitch. If you participated at any stage, you must report it AND show you made an attempt to stop it if you want to have a defense against charges.